Boorman and Ors v Glaxo Wellcome Australia Pty Ltd [2017] NSWSC 576

Supreme Court New South Wales

Medium Neutral Citation: Boorman and Ors v Glaxo Wellcome Australia Pty Ltd [2017] NSWSC 576 Hearing dates: 15 March 2017, 3 April 2017 Date of orders: 22 May 2017 Decision date: 22 May 2017 Jurisdiction: Common Law Before: Fagan J Decision: 1. The following orders are to take effect as orders made in each of the proceedings identified by Court File Number in the title page to the reasons of Fagan J of this date and are to apply to each of the plaintiffs in those several proceedings.

2. The plaintiffs are to pay the defendant's costs of and incidental to the defendant's notice of motion filed 27 January 2016 including the argument with respect to costs pursuant to the amendment to the notice of motion made by leave granted on 15 March 2017.

3. Smart Lawyers Pty Ltd are to pay to the plaintiffs the entirety of the costs which the plaintiffs are required to pay to the defendant under order 2. Catchwords: EVIDENCE – legal professional privilege – implied waiver – where plaintiffs put in issue facts that could only be proved or disproved by reference to client solicitor communications

COSTS – where plaintiff resisted inspection of subpoenaed documents but later consented – where defendant had litigated the question of inspection – whether plaintiff justified in resisting inspection

COSTS – costs against legal practitioners – Civil Procedure Act 2005 (NSW), s 99 – whether costs incurred "without reasonable cause, in circumstances for which a legal practitioner is responsible" – where plaintiffs' unreasonable resistance to inspection of subpoenaed documents was on the advice of legal representatives Legislation Cited: Civil Procedure Act 2005 (NSW) Law Reform (Miscellaneous Provisions) Act 1944 (NSW) Limitation Act 1969 (NSW) Limitation of Actions Act 1974 (Qld) Cases Cited: Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1; [2015] HCA 33 Artistic Builders Pty Ltd v Nash [2009] NSWSC 102 Burbery v Glaxo Wellcome Australia Pty Ltd [2015] NSWSC 820 DSE (Holdings) Pty Limited v Intertan Inc (2003) 27 FCR 499; [2003] FCA 384 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 Fletcher v Fortress Credit Corp (Aust) II Pty Ltd [2014] QSC 303 Lillicrap and Anor v Nalder & Son [1993] 1 All ER 724; [1993] 1 WLR 94 Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 Paragon Finance Pty Limited v Freshfields [1999] 1 WLR 1183 Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Category: Costs Parties: Heather Boorman; Joseph Murray; Ian Beesley; John Barton; Charmaine Poulton; Vivienne Johnston; Suzann Davidson; Terri Bradley; Mark Thompson; Bernadette Clarke; Kenneth Cooper; Beverley Wellington; John Hardy; Elizabeth McQuillan; Bronwynne McMahon as executrix of the estate of the late James McMahon; Louise Johnstone (plaintiffs) Glaxo Wellcome Australia Pty Ltd (defendant) Representation: Counsel: Mr David Baran (plaintiffs) Mr Bede Kelleher (defendant)